A UK search engine wants PageRank algorithm to be revealed
In the matter of Case 5:06-cv-02057-JF between KinderStart.com v. Google, on July 13th, 2006 US District Judge Jeremy Fogel for the Northern District in San Jose dismisses the lawsuit brought by UK search engine KinderStart.com.
The judge grants complainant Leave to amend. KinderStart has sued Google for alleged demotion of its organic search ranking due to unfair penalization. The search engine asked for financial damages and revelation of Google’s methodology behind its Page Rank algorithm.
The KinderStart search engine
The Norwalk based firm KinderStart is one of the most popular indexed directory and search engine. It becomes known after a group of private investors gathered in an open source community decides to fund the creation of a search engine specifically related to the childhood.
One of its investors is a web designer that operates for Disney and Microsoft and applies new graphic patterns to the website to make it more captivating for children users.
The www.kinderstart.com website is launched on May 2000 and soon becomes a relevant Internet destination for caregivers, representatives, educators with an excess of 10.000 page views to visitors on a monthly basis.
It provides a lot of services related to childhood needs and supports
Its services are targeted to children zero to seven both as users or concerned so far. Indeed, parents and teachers are invited to enter with an easy use of finding information because it is specifically focused on resources useful in the care of young children.
Parents and teacher are well provided with services like Childcare Locator or Movies, a list of movies suited for children, or Kid Friendly Places, should they want to plan a vacation with their kids or a school trip.
Beside services related to an adult user’s use of the net, KinderStart added also resources specifically dedicated to younger users that are starting to gain confidence with web related services.
So, among its search categories that are easily visualized on the home page, we discover links to Adoption, Animal friends, Bringing home baby, Child development, Education, Family dynamics, Learning activities and crafts, Pregnancy, Birth.
KinderStart suffers demotion in search results pages even being one of the Google’s AdSense clients
On 2003, KinderStart enrolls in Google’s AdSense paying for a series of sponsored links and thus placing advertisements from the Google Network onto its site against payment.
On 2005, KinderStart notes that search results related to it and showed on Googles search results pages are demoted. Indeed, common key word searches on Google no longer list KinderStart as a result. This lack of visibility turns out in a 70 percent drop in monthly traffic of the UK search engine that reveals a loss over 80% of monthly AdSense revenues.
The strange thing is that this demotion is suffered only on Google pages because when KinderStart shows as a result on Yahoo! or MSN’s pages, nothing seems to be changed in ranking. This won’t be a problem wouldn’t Google be reported as the most popular and most used search engine in the world.
KinderStart is conscious of the fact that the functioning of the algorithm on which is based the ranking of the results should be considered a trade secret, but it is well aware too that it should be maintained as far as it does not constitute a prejudice for the owner of the site that suffered the demotion for the algorithm effect.
The feared practice of Blacklisting sites
KinderStart assumes to be afflicted by the Google’s practice of Blockage of websites. It allegedly delists, de-indexes and censors websites, even isolating them from search queries. Page Rank generates a score as a whole number up to 10 to assess the importance of a page the user is viewing and by penalizing websites, KinderStart is convinced that Google reduces a site’s PageRank to zero without apparent reason.
KinderStart becomes strongly determined to make the algorithm behind Page Rank to be revealed and manages to find other websites blacklisted by Google, guiding them in a class action against the internet-leading search engine.
From the file of the complaint to its dismissal
KinderStart.com files a complaint against Google on March 17, 2006. On May 2, 2006 Google files a motion to dismiss denying all the allegations in the complaint and a motion to strike for the judge to order the removal of KinderStart pleading to the Court. Both motions are opposed by plaintiff. On July 13, 2006 the US District judge dismiss the lawsuit.
KinderStart alleges nine claims for relief
KinderStart files action on behalf of itself and others alleging nine claims for relief: Violation of Right to Free Speech under the US and California Constitutions; Attempted Monopolization under Sherman Act Section 2; Monopolization under Sherman Act Section 2; Violations of the Communication Act; Unfair Competition under California Business and Professions Code; Price Discrimination under California Business and Professions Code; Breach of the Implied Covenant of Good Faith and Fair Dealing; Defamation and Libel; Negligent Interference with Prospective Economic Advantage.
Google’s motion to dismiss
On its turn, Google files a motion to dismiss KinderStart’s claims pursuant to Rule 12(b)(1) and Rule 12(b)(6) of the Federal Rule of Civil Procedure.
The Court dismisses claims and grants plaintiff leave to amend
The Judge dismisses the claims brought by KinderStart.com and grants Google’s motion to dismiss in the lawsuit on the basis that the plaintiff failed allege any conduct of Google that significantly threatens or harms competition.
Violation of right to free speech
As to the claimed violation of right to free speech under the US and California Constitutions, the Judge recognizes that KinderStart has not alleged facts tending to show that Google has dedicated the operations of its search engine to public use.
Furthermore, it has not alleged hat users’ freedom extends to the realm of speech considering Results Pages and PageRank scores Google is the equivalent of a traditional public forum in which Constitution grants Kinderstart a right to speak.
Monopolization under Sherman Act
Regarding the claims of monopolization under Sherman Act Section 2 the Court finds unfounded the claim of anti-competitive conduct for denial of access to an essential facility or refusal-to-deal because insufficient facts were adduced to support an alleged intent either to control prices in the Search Ad Market or to destroy competition in the Search Engine Market.
KinderStart has not showed evidence of antitrust injury in the form of lost traffic and revenue as a result of anti-competitive or predatory conduct.
Violation of the Communication Act and the common carrier theory
The Violations of the Communication Act are dismissed with leave to amend by the Court because KinderStart has claimed that Google, depicted as a common carrier providing enhanced services, invites the public to search using its search engine. In order to be part of Communications Act defence, KinderStart’s allegations should have been about speaking, not searching.
California Business and Profession Code is not violated
The Court finds that KinderStart allegations of AdSense agreement deceiving public into expecting benefits from participating in the program do not meet unlawful business practices protection pursuant to California Business and Professions Code.
Allegations do not identify specific terms of the agreement that are deceptive nor indicate how the agreement as a whole is deceptive, so that Google’s conduct cannot be judged as significantly threatening or harming competition. As for protection from price discrimination, allegations to be addressed KinderStart should have demonstrated that Google purchased anything from Google.
Good Faith and Fair Dealing covenant has not been violated too
Breach of the Implied Covenant of Good Faith and Fair Dealing requires a party to do nothing that will deprive the other of the benefits of the contract, but reciprocity does not imply its extension to conduct expressly disclaimed by the express terms of the contract. Since AdSense agreement expressly makes no guarantee regarding the amount of ad impressions or of revenue generated, KinderStart cannot reasonably claims that a benefit should be expected under the AdSense terms and be protected pursuant to covenant of good faith and fair dealing.
No Defamation from Google nor Negligence
The Court dismisses Defamation and Libel claim on the basis of the PageRank 0 grade. To be addressed, it should be demonstrated the existence of a false statement about the output of PageRank causing injury to KinderStart but it failed to explain the complaint that, as a consequence, is dismissed with leave granted to amend.
The last claim focused by the Court is about the Negligent Interference with Prospective Economic Advantage. The tort requires three elements to be demonstrated, naming them economic relationship between plaintiff and a third party; defendant knowing that it can interfere with this relationship; negligence; loss of benefits or advantage suffered by the plaintiff for the negligence. For KinderStart failed to allege all three elements, the related claim is dismissed with leave to amend.
The debate around regulator of search engines
The cause brings to surface a deep thorn in a side for all search engines. For years, scholars are involved in a public debate around regulatory arguments, without prevalence of pro or against regulatory defendants. Whether a search engine should demand its functioning to government agencies is far to be established, and many theories have been proposed on the effects of regulating ranking algorithms.
The debate often origins from PageRank, the powerful Google’s algorithm that promotes or demotes sites on the basis of their interest to users. Apparently, the judge, even rejecting defamatory claims, has left open the door whether the Google’s statement upon importance of a site is a factual statement proving PageRank objectiveness or, should KinderStart allegations proved to be true in a future successful lawsuit, Google is merely changing outputs by manual intervention.
Cases related to the functioning of PageRank
Google has find itself before Court in other cases related to the functioning of PageRank. One of them is Roberts v. Google, where the search engine is sued for ranking withdrawn and Langdon v. Google, where the claimant seeks a “must carry” obligation for Google.